US SUPREME COURT DECISIONS

The assignment of land provided for by Article IV of the treaty of March 6, 1865, 14 Stat. 667, with the Omaha Indians was merely an apportionment of the tribal right of occupancy to the members of the tribe in severalty, leaving the fee in the United States and chanrobles.com-red

Page 245 U. S. 90

leaving the United States and the tribe free to take such measures for the ultimate and permanent disposal of the lands, including the fee, as might become appropriate in view of changing conditions, the welfare of the Indians, and the public interests.

The facts that the treaty does not say that the fee shall pass, that it makes no provision for patents, and does not relieve assignees from federal guardianship or subject them to state laws, or dissolve the tribe, or abridge its power to speak and act for its members, while it does expressly provide that all the lands, assigned and unassigned, shall remain an Indian reservation, subject to the Indian trade and intercourse laws of Congress, and upon which white persons, other than federal employees, shall not be allowed to reside or go without written permission from the Indian agent or a superior officer, confirm this construction of Article IV.

This construction also is confirmed by the practical construction placed upon the treaty by the United States and the tribe, as evidenced by the terms of the certificates of assignment, the petition of a number of the assignees, including chiefs who had participated in the treaty, for a better tenure, the passage of the Act of August 7, 1882, c. 434, 22 Stat. 341, to become operative when consented to by the tribe, the acceptance of that act by the tribe, and the execution of the act through the surrender and accounting for outstanding certificates of assignment, and the making and acceptance of allotments under it -- a construction of the treaty which has become practically a part of it and could not be now rejected without seriously disturbing the titles of those who not unreasonably relied upon it.

Possessory rights based on assignments made under Article IV of the treaty of 1865, supra, were terminated by the Act of 1882, supra. An assignee who failed to exercise his preferred right of selection waived it, and his assigned tract became allottable to any other qualified selector.

The provision in § 4 of the Act of August 7, 1882, supra, that "any right in severalty acquired by any Indian under existing treaties shall not be affected by this act" was not intended to qualify the plan of allotment defined in § 5, but only to prevent the sale under the earlier and separable portion of the act of tracts subject to Indian rights in severalty acquired under treaties.

A patent for an allotment issued under the Act of August 7, 1882, supra, in the name of an Indian who was dead at the time, inures to the benefit of his heir under § 2448, Rev.Stats.; the fact that the patentee had died before requisite proceedings had been taken chanrobles.com-red

Page 245 U. S. 91

upon his selection would not render the patent void, but, at most, voidable in an appropriate proceeding. Such a patent cannot be attacked by a mere occupant of the allotment in an action brought by the United States and the patentee's heir to recover damages for wrongful use and occupation of the premises.

222 F.5d 3, reversed.

The case is stated in the opinion.